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decided: June 3, 1988.


Appeal from the Order of the Department of General Services, in the case of The Township of Ross v. Commonwealth of Pennsylvania, Department of General Services, Administrative Proceeding Act 101-1976, as amended.


Elaine V. Preston, with her, William W. Milnes, Brandt, Milnes & Rea, for petitioner.

David A. Fitzsimons, Assistant Counsel, with him, Michael D. Reed, Chief of Litigation, P. Alan Zulick, Deputy Chief Counsel, and William W. Warren, Chief Counsel, for respondent.

Judges Craig, Doyle and Palladino, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 116 Pa. Commw. Page 533]

The Township of Ross (Township) has petitioned for review of an order of the Department of General Services (Department) affirming the decision of the Bureau of Risk and Insurance Management (Bureau) denying the Township's claim for reimbursement of a $25,000 death benefit the Township paid to the widow of Leroy Ehrman.

Leroy Ehrman was a volunteer fire fighter in the Township. On April 19, 1977, Mr. Ehrman was directing traffic at the scene of a fire to which he had responded. While directing traffic, Mr. Ehrman told a fellow fire fighter he did not feel well, and shortly thereafter Mr. Ehrman suffered a fatal heart attack. On November 24, 1980, the Township paid Mr. Ehrman's widow $25,000 because it believed Mrs. Ehrman was entitled to the money by virtue of section 1 of the Act of June

[ 116 Pa. Commw. Page 53426]

, 1976 (Act 101), P.L. 424, as amended, 53 P.S. ยง 891, which provides that a political subdivision shall pay that sum to a surviving spouse of a fire fighter killed in the performance of his duties. The Township then sought reimbursement from the Bureau, which denied reimbursement on March 24, 1981. The Township appealed the denial to the Department and, simultaneously, to this court.*fn1 Then, on October 16, 1981, Act 101 was amended,*fn2 with the amendment to be retroactive to January 1, 1976. The Department then advised the Township to resubmit the claim to the Bureau so the amended law could be applied.

On resubmission, the Bureau again denied the claim, and the Township again appealed to the Department. The Department affirmed the Bureau's denial of

[ 116 Pa. Commw. Page 535]

    reimbursement. The Township appealed to this court (2502 C.D. 1982). While the appeal was pending, this court decided Seybold v. Department of General Services, 75 Pa. Commonwealth Ct. 118, 461 A.2d 353 (1983) (Seybold I). In that decision we invalidated the definition of "killed" the Department had been using,*fn3 and which was used in Mr. Ehrman's case. Thus, the parties requested we remand this case so the Bureau and Department could render a decision without reliance on the invalidated definition. We remanded and the case was decided once again. The Bureau again denied reimbursement, and the Department affirmed. The Township has petitioned for review.

The Township has presented three issues for review. The Township asserts the Department's order is: 1) arbitrary and capricious because the Department's hearing examiner ignored evidence; 2) not in accord with the law because it conflicts with our decision in Seybold I; and 3) not in accord with the law because the Workmen's Compensation Bureau awarded benefits.*fn4 We shall address these issues in order.*fn5

[ 116 Pa. Commw. Page 536]

The Township first asserts that the hearing examiner ignored evidence and therefore the Department's order is arbitrary and capricious. This is actually a question of whether substantial evidence exists to support the Department's findings. Our review of the record indicates the Department's findings are based on substantial evidence. Larry E. Hurwitz, M.D., was deposed*fn6 and testified that Mr. Ehrman suffered very severe arteriosclerotic heart disease and had suffered a heart attack prior to the fatal one on April 19, 1977. Dr. Hurwitz stated, with a reasonable degree of medical certainty, that Mr. Ehrman's fire fighting activities on the day of his death were not a substantial contributing factor or cause of his death. Hurwitz deposition at 10-11. Also introduced was a letter from George R. Moffitt, Jr., M.D. in which Dr. Moffitt stated:

I believe the cardiac arrest was spontaneous and in the course of progression of far advanced severe coronary artery disease. I see nothing in the record that would relate any stressful activity to his sudden death and believe he would have

[ 116 Pa. Commw. Page 537]

    died at this same time even if he had been quiet and sedentary at home.

Although conflicting medical evidence was offered, the hearing examiner found that Mr. Ehrman's death was not caused by performance of his duties as a fire fighter. This conclusion is supported by substantial evidence, in that Dr. Hurwitz's testimony and Dr. Moffitt's letter constitute "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Kassouf v. Zoning Hearing Board of Scott Township, 112 Pa. Commonwealth Ct. 182, 185, 535 A.2d 261, 263 (1987).

The Township next argues that the present decision conflicts with our decision in Seybold I. We disagree. In Seybold I we invalidated the definition of "killed" which the Department had been using, holding that the Department's definition was too restrictive in light of the legislature's intent that social legislation be broadly construed.*fn7 Although a heart attack can be an "injury" under Act 101,*fn8 the Township seems to be arguing that because of the remedial nature of the legislation the causation requirement can be ignored. Section 3 of the Act of October 16, 1981, P.L. 295 (amending Act 101), mandates that causation be established:

[R]etroactive to January 1, 1976, [the original Act] shall be applicable to the deaths of all firefighters . . . dying on and after January 1, 1976 as a direct result of injuries sustained in the performance of their duties, regardless of the date when such injuries occurred. (Emphasis added.)

[ 116 Pa. Commw. Page 538]

See Crouse v. Department of General Services, 116 Pa. Commonwealth Ct. 43, 540 A.2d 1015 (1988). We also note that following the remand in Seybold I, benefits were again denied by the Department, and we affirmed that denial. Seybold v. Department of General Services, 107 Pa. Commonwealth Ct. 349, 528 A.2d 999 (1986) (Seybold II).

Finally, the Township argues that the Department was required to find Mr. Ehrman's death work-related because the Workers' Compensation Bureau had so found. We do not agree. The Department and the Workers' Compensation Bureau are each entitled to make credibility determinations, and one cannot be bound by the determinations of the other.

Accordingly, the order of the Department is affirmed.


And Now, June 3, 1988, the order of the Department of General Services in the above-captioned matter is affirmed.



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